Devolution, 15 Years On: A Sophisticated Solution Or A Constitutional `cop-out`?

Constitutional lawyer Vernon Bogdanor has described the devolution settlement of 1998 as the "most radical constitutional reform this country has seen since the Great Reform Act of 1832". Though such a grand claim may be exaggerated, the devolution of powers conventionally conceived of as being the sole business of a centralised State was certainly radical. Indeed, devolution is said by proponents to be an appropriate method of achieving greater subsidiarity in a constitution otherwise characterised by centralisation and political detachment, both at a European and domestic level. However, critics of devolution point to the incremental development of the settlement and its consequent asymmetricality. This, it is claimed, makes for an unsustainable settlement. 15 years after the first bricks of the settlement were laid, a look at the current settlement shows a strong outcome for supporters of subsidiarity. Far from being a lazy, incrementalist 'cop-out', the settlement should be seen as a sophisticated solution to distinct political problems, in distinct socio-political circumstances.

It is indisputably the case that UK devolution is characterised by asymmetry. This is seen, in particular, in the consociational model of governance found in Northern Ireland and the more extensive powers afforded to the Scottish Parliament than its Welsh and Northern Irish counterparts.

However, rather than viewing the settlement's asymmetricality as a flaw, we ought to consider it devolution's greatest strength. It stops nuts being cracked with sledgehammers, whilst allowing for different degrees of subsidiarity to serve the different interests of the devolved regions. The very idea of a one-size-fits-all subsidiarity runs contrary to the citizen-centric rationale which underpins the normative value of subsidiarity. If subsidiarity is to give power to certain people over issues which directly and exclusively affect them, it follows that it ought only to be given when those people both desire and require it. In other words, subsidiarity should be seen as a means of achieving democratic aims, requiring normative justification, rather than a detached, stand-alone doctrine. The asymmetricality of the devolution settlement can better be seen as the product of a nuanced approach to devolution taken by political actors sensitive to the varying needs of different regions in the UK.

Strongly demonstrative of this point is the sharp contrast between the Northern Irish system of government and other devolved regions. The imposition of consociationalism was made necessary by serious social and political tensions in Northern Ireland, broadly-speaking between two distinct community factions. Northern Irish consociationalism involves the splitting of executive positions between two rival communities and the stipulation that, for legislation to be passed, a majority of support must be found in both communities. This runs contrary to what Brits might consider to be the paradigmatic model of democracy: the 'winner-takes-all' Westminster approach. Such a comprehensive divergence from the Westminster model, both administratively and legislatively, contributes to a significant administrative asymmetricality within the devolved bodies.

The asymmetricality created by the unique approach taken to Northern Ireland is not to be seen as a product of lazy, top-down constitution-making but as a nuanced approach to social and political conditions, requiring a divergence from the norm in the UK. It is surely right that the devolution settlement in Northern Ireland is geared towards maintaining stability and peace over absolute self-governance. This sensitive approach to Northern Ireland was reflected in the approach taken in the House of Lords in 2002 to the Northern Irish aspect of the settlement. In the case of Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, the Law Lords opted for a generous and purposive interpretation of a provision requiring an election to be called by the Secretary of State in certain circumstances, namely after a 6 month time lapse.

In Robinson, the required circumstances were in existence but the problem that this provision aimed to resolve had been resolved marginally outside of the requisite time period. Lord Bingham, in holding that an election need not be called, noted that "where constitutional arrangements retain scope for the exercise of political judgment, they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude." Given that, in Lord Bingham's view, Parliament did not wish "to constrain local politicians and the Secretary of State within such a tight straitjacket", we can see why Lord Bingham put the interests of political and social stability above the mechanistic application of constitutional rules. Thus, where in relation to Scotland and Wales it is likely that the courts will insist upon the mechanistic application of legal rules, a divergence from this, to an extent, in Northern Ireland can be seen as a progressively flexible approach by the establishment to a changing and potentially volatile situation. If constitutional rules do not serve the interests of the community, who do they serve?

A further aspect of the settlement which can be characterised by imbalance, contributing to the settlement's overall asymmetricality, is the variant approaches to those matters devolved to each region. The 1998 Acts gave a significantly wider array of devolved matters to the Scottish Parliament than the Welsh and Northern Irish Assemblies, the latter even having certain matters excerpted from devolution entirely.

Indeed, this imbalanced approach to devolution is demonstrated aptly by the presumptions applied by the Westminster Parliament in 1998. For example, Westminster specified a closed list of matters reserved from the Scottish Parliament, leaving all other non-specified matters within its reach, whilst the Welsh Assembly has a closed list of those matters specifically devolved to the Assembly. We might say that Scotland is given a negative liberty to legislate on certain matters, whereas the Welsh and the Northern Irish are conferred positive rights to legislate. The latter is clearly, in rationale and effect, far more deferential to the Westminster Parliament. Correlatively, it can be seen that the Scotland Act was specifically constructed in a way that would allow for greater finesse in future incremental transfers of power to the Scottish Parliament, whereas the Welsh and Northern Irish Acts adopted a more definitive approach to devolution.

As mentioned above, the largely unique socio-political situation in Northern Ireland goes a long way to providing a justification for a cautious approach to Northern Irish devolution, particularly in relation to matters excerpted completely. Given the indisputable failure of intermittent 'Home Rule' throughout the 20th century, it is more understandable for the UK government to take a three-pronged - devolved, reserved, and excerpted - approach to Northern Irish devolution, thereby clearly setting out which powers are justifiably devolved; which may at some point be justifiably devolved; and which powers cannot foreseeably be devolved to Northern Ireland. A good example of this nuanced approach in action could be the devolution of the responsibility for justice and policing to Northern Ireland in 2009, potentially demonstrative of improving stability in the region. This is so in particular because policing, being the outright coercion of individuals by the State, must only be the responsibility of a legitimate Executive - in the case of Northern Ireland, we might extend the ambit of 'legitimate' to cover adherence to the Rule of Law and even respect for fundamental human rights, particularly if we take the Lockean view of legitimacy as being derived exclusively from the will of 'The People'.

What the above observations demonstrate is that the different levels of power and democratic deference afforded to each country in the devolution settlement is not in itself a problem. Giving more power to Scotland reflects the UK's respect for the democratic principle of self-determination, for a far greater appetite for devolution was prevalent, and remains prevalent, in Scotland than in, say, Wales. The planned 2014 Scottish independence referendum clearly demonstrates the continuing appetite for subsidiarity in Scotland, at least in certain sections of the population. 1998's marginal victory for devolution in Wales, and current Welsh opinion polls demostrate that such a strong appetite simply does not exist in Wales. Affording less power to Northern Ireland through excerpted matters, and a longer list of reserved matters, is reflective of the delicate socio-political situation. It is surely right that the devolution settlement in Northern Ireland is geared towards maintaining stability and peace over absolute self-governance. When we look beyond the aesthetics of the devolution settlement, moving away from superficiality and soundbite, we see not a constitutional 'cop-out' dictated by lazy and elite constitution-making, but a sophisticated solution to distinct social and political circumstances. Fifteen years on from the 1998 devolution Acts, in 2013, we can reaffirm the merits of the settlement, quashing any claim that its asymmetricality is anything other than a blessing.